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The National Surveillance State: A Response to Balkin:
I have just posted a 5-page response to a recent essay by Jack Balkin on what Balkin calls "The National Surveillance State." My response, forthcoming in the Minnesota Law Review, is titled The National Surveillance State: A Response to Balkin.

  The abstract:
In his recent Lockhart lecture, published in this journal as "The Constitution in the National Surveillance State," Jack Balkin warns of a "new form of governance" that he calls "The National Surveillance State." This brief response article argues that the changes Balkin details should be understood as a technology problem instead of a governance problem. We are witnessing a broad societal shift away from human observation and towards computerization. The widespread use of computers and the introduction of digital information have caused dramatic changes in how individuals can learn what others are doing. The government's goals have not changed, but the technological playing field has. The law must respond because technology has changed, not because a new form of governance has emerged. Understanding the changes as a technology problem rather than a governance problem also suggests solutions that draw support from a wide political base rather than a narrow one.
You can read Balkin's lecture that I am responding to here:The Constitution in the National Surveillance State.
Frog Leg (mail):
"... the changes Balkin details should be understood as a technology problem instead of a governance problem.

But isn't the medium the message as well? One can argue that, at the time of the Founding, the only truly democratic government that was feasible with the technology of the time was a libertarian one. In the 20th century, technology renders this no longer true. However, technology can also create the end result of much more indirect intrusion into people's lives, in ways that were not possible before.

[Of course, I am posting this without reading OK's article, so I am not sure if this type of question is already addressed there.]
2.12.2009 4:23pm
bob (www):
I see no evidence that the public is any more enamored of Burkean conservatism than they are of civil libertarians. If support for civil liberties is weak today, it is because people fear terrorists and criminals more than the government, and see any attempt to restrict the government's ability to fight against such threats as counter to their interests. On the one hand, such faith in the government is positive, as it suggests few people have direct or indirect experience of problems caused by excessive surveillance. On the other, it is a concern because it creates a substantial risk of targeted enforcement, covert control of the public sphere, etc. At this point, we appear to have executives who wish to expand powers as far as possible, a judiciary that applies precedent without apparent recognition of the changes implied by the technological shifts Prof. Kerr describes, and a legislature that represents a public eager for more security.

And that's just the government, of course. A local city council recently debated the purchase of a system that would use video equipment to track the positions of cars within the city by recording their license plates. The information is, of course, public, and as supporters of the plan pointed out, the same information could already be collected by private organizations.
2.12.2009 4:40pm
Bruce Hayden (mail):
I think to some extent that this is what happened with the NSA/TSP/FISA debate. The playing field had changed significantly since FISA had been passed, and yet that metric was being placed against the TSP. FISA was passed at a time when we had a very limited number of well defined enemies who had a small number of agents in the U.S., and so we could go through the long process of acquiring warrants and listening to their conversations.

Fast forward thirty years. International communications are grown 1000 fold (just guessing), the enemy is nebulous, numerous, and we have the capabilities of tapping his phones almost anywhere in the world. The problem now is that of volume. FISA no longer worked for a number of technical reasons, but the biggest was probably volume. Instead of listening too a handful of lines, thousands of phone numbers were being tracked, often with the time between when they became of interest and went inactive a matter of days, if not hours.

Many (like I suspect Balkin) were wedded to the civil liberties paradigm of earlier years, when the government listening to your phone calls was intrusive. Why the difference now? Because mostly the government was now listening at a much higher level, listening for code words and the like, and not at the specifics of each conversation. It couldn't, because it didn't have the manpower to do so. It was one thing when the paradigm was an FBI agent listening to one or two lines at a time. It is completely different when the NSA is potentially listening to thousands, if not millions, of calls at once. This cannot be done individually, but rather must be automated.

Another way of viewing this is through damages. In the one NSA/TSP case that was won by the plaintiffs at the trial level, then reversed on appeal, I was struck by the fact that the plaintiffs could not really point to any real damages, except some theoretical chilling effect. This is far different from the typical wiretap case where at a minimum, criminal defendants are asking for suppression of evidence. There, there is a real harm. And it is an easy step from there to asking for actual damages from the tapping of actual conversations.
2.12.2009 5:23pm
Fub:
From OK's abstract:
The government's goals have not changed, but the technological playing field has. The law must respond because technology has changed, not because a new form of governance has emerged.
I'll use an example for a question, just to make sure I understand what this assertion means.

Red light cameras. These are, in theory, no different from having a (very fast) police officer stationed at the intersection to write tickets for red light runners.

But the technology does more than just create cheap policemen to write tickets. It creates incentives for government to lie, cheat and steal, or bend the law, or whatever you want to call it.

The government sees a revenue source and begins to fiddle with the light timing. Shorter yellow lights generate more ticket revenue. They also create more accidents.

But the courts say the laws against running red lights (which includes getting caught in the intersection when the light goes red) exist for public safety.

At what point has governance changed from public interest goals to simple kleptocratic goals?

What possible change in law could "respond" to these new devices in a way that would be acceptable? Should the law state that public safety is not the purpose of a stoplight? Could a law even be drafted that would outlaw the use of traffic enforcement for brazen revenue raising, without eroding the original public safety purpose of the law against running red lights?

Or what?
2.12.2009 5:48pm
Germanicus:
Fub wrote:

But the technology does more than just create cheap policemen to write tickets. It creates incentives for government to lie, cheat and steal, or bend the law, or whatever you want to call it.

I don't think the cameras created the government's incentive to raise money. Whether it's a fast cop or an electric device, tickets have always been a revenue source. I agree with your specific point about shortening the length of the yellow light being dangerous and unfair, but cities have had areas with suddenly lowered speed limits, limits set below what that sort of road normally carries, and a variety of other methods to induce traffic violations for a long time. Cameras are problematic, but they're not the cause of the problem.
2.12.2009 6:00pm
Fub:
Germanicus wrote at 2.12.2009 6:00pm:
I agree with your specific point about shortening the length of the yellow light being dangerous and unfair, but cities have had areas with suddenly lowered speed limits, limits set below what that sort of road normally carries, and a variety of other methods to induce traffic violations for a long time. Cameras are problematic, but they're not the cause of the problem.
Maybe inept phrasing on my part. I agree that cameras are not the cause of the problem, in the sense that greed is the cause of the problem.

Cameras provide a new, and very efficient, means to exercise or fulfill greed. They also provide much greater incentive than an old fashioned policeman writing tickets, to fiddle with the public safety purpose of stoplights in order to increase revenue.

Cameras are not the primary incentive. They just provide means to act on that incentive much more efficiently, and in ways that undermine the original purpose of the law.
2.12.2009 6:53pm
FWB (mail):
Power exists for two reasons: To be expanded upon and to be exercised by those holding power. Government has always grown to abuse its citizens (subjects). Technology is just the current tool. The drive has always been there.

Until such time as one harms another, the government has no business knowing ANYTHING about the one. Minority Report!!!
2.12.2009 8:05pm
NK:
Prof. Kerr: I wonder if you would illustrate what you have in mind when you write that "to restore the status quo, the law should make hard what technology has made easy." For instance, many (but not all) states take DNA samples of convicted felons. What sort of use restrictions (or technological retrofitting, if you will) would you prescribe?
2.12.2009 9:20pm
whit:
note that technology has also created areas of privacy where none existed before.

for example, prior to the internet, there was little to no anonymous discoursing, where people could engage in discussions without at least being seen (if not their actual name, etc. being known to the person they were speaking to).

the internet created the idea that there is some kind of right to anonymous speech, that didn't exist in effect, prior to the internet. letters to the editor, for example, require the person provide their name and city of residence.

shopping was occasionally done mail order, but nothing like today. most items purchased were done such that the teller, people in the store, etc. saw what you were buying.

the internet has created the opportunity for commerce and discourse that rarely if ever were done anonymously/privately like they are now.

also, in the past in order to get all sorts of assessor's office information, and other sorts of personal data about people, usually required a trip in person to the county recorder's office or in some cases a signed request, etc.

so, while technology has in some cases made it easier to get information (either by the govt. or by private industry), to share it, and to compare it with other pieces of information, it has also created areas (blogs, internet commerce, internet searches) where people can now BE anonymous (kind of) where they couldn't in the past.
2.12.2009 9:54pm
MarkField (mail):

note that technology has also created areas of privacy where none existed before.

for example, prior to the internet, there was little to no anonymous discoursing, where people could engage in discussions without at least being seen (if not their actual name, etc. being known to the person they were speaking to).


This is true in the limited sense of ongoing conversation. However, anonymous speech was very common in the past. People published under pseudonyms or with no attribution at all (e.g., Samizdat). Current technology seems destined to eliminate that as a possibility on the internet. It might even be a countervailing force moving people back to paper as a means of expression.
2.12.2009 10:20pm
C. Gittings (mail) (www):
Well I have some miscellaneous comments and questions...

"In my view, we aren't seeing a "new form of government. The form of government remains very much the same."

I'm not so sure about that -- the form of our government just changed from night to day on January 20th. One can believe whatever they will about the relative merits of a Bush or Obama administration, but they have VERY different views of what the Constitution and form of our government is, both in theory and practice. The use of technology would be one of the more dynamic areas of disagreement by it's very nature --- pervasive across the society, vast economic implications, maximum volatility.


"They are remarkably efficient tools for distributing and preserving data."

They are also remarkably efficient at generating and propagating bugs, errors, and malicious software.


"If a surveillance tool or program doesn't work, it shouldn't be used. This seems obvious, but tends to become lost in practice."

Exactly -- and here I have a question for Bruce Hayden: what makes you think you know anything about the effectiveness of either FISA or the illegal NSA progam?

Like for example, whether or not they actually work?

Because the Bush administration says so??

Or because the contractors billing the government for the software say so??


"But the government's functions remain the same regardless of technology: technology has changed how the government does its job, but the job itself remains. As before, the legal restrictions on government practices are up to lawmakers, not the State itself -- National Surveillance or otherwise."

The distinctions between "the government", "lawmakers", and "the state" being . . . . ?
2.12.2009 10:51pm
whit:

This is true in the limited sense of ongoing conversation. However, anonymous speech was very common in the past. People published under pseudonyms or with no attribution at all (e.g., Samizdat). Current technology seems destined to eliminate that as a possibility on the internet. It might even be a countervailing force moving people back to paper as a means of expression.



my understanding is it was not very common for the "average joe".

that's what the internet changed.

think about it. 50 yrs ago, how many anonymous conversations/discourses did the average joe engage in?

nowadays, on the internet it's very common.
2.12.2009 11:16pm
John Moore (www):
The utility of the surveillance tools makes their use inevitable. The temptation of those tools, as illustrated by the traffic light/speed cameras, is to abuse them.

This is just a new variation on an old problem: give the government power, and it will try to abuse it. Refuse the government power and you lose the benefits.

There has been a lot of public debate here in Arizona as speed cameras have suddenly multiplied like rabbits (for a chill, note that the main cause of this was our former governor, now head of Homeland Security). About half of commenters support the cameras. The other half object. Of those who object, about half cite civil liberties.

Society needs to learn to deal with the use of these devices. Mechanisms such as judicial review, citizen review boards, penalties for misuse, strong technological means for auditing use and tracking abuse, and others need to be developed.

There is real value, along with danger, in the ability to more accurately recreate history, which is what almost all of this technology provides.

Unfortunately, without the proper debate and advocacy, technological and other safeguards will not be put in place. The civil libertarians are totally against the technology, thus removing their input from the process of creating safeguards just in case the (almost inevitable) usage spreads.

Consider what will happen in the likely event of episodic domestic terrorism - say, Intifada II or Mumbai like attacks. Who is going to win the argument - those who seek safety (spare me the Ben Franklin quote) or those who have been opposing all kinds of surveillance forever?

Perhaps civil libertarians should draw straws. Half should continue to try to stop all use of this technology. The other half work to devise and advocate means to minimize abuse and maximize utility.
2.12.2009 11:26pm
Thomas_Holsinger:
John Moore,

I diagree with this statement by you, and agree with Professor Kerr:
"This is just a new variation on an old problem: give the government power, and it will try to abuse it. Refuse the government power and you lose the benefits."

It is not a question of the people giving the government power. Professor Kerr properly frames the issue as technological advances giving the government new power, just as the same technological advances have given everyone with computer/internet access new power.

Rather we have an issue of whether to deny the government the ability to use this new power in a lawful manner. Jim Dunnigan at Strategy Page has covered this issue extensively concerning intelligence/counter-intelligence datamining. Congress has forbidden the intelligence community from using commerical datamining software within the United States. But not abroad.

And you would be amazed at how effective datamining is for military intelligence and counter-terrorist operations in Iraq and Afghanistan. The armed forces and CIA are using civilian police software with great success abroad.

But counter-intelligence and anti-terrorist surveilllance organizations in the United States are not allowed to use that very same software. State and local police agencies are using it against gangs and whatnot, because Congress hasn't forbidden them to.

This odd policy has created some pretty silly situations.

And Congress's motivation in forbidding domestic counterintelligence/anti-terrorist agencies from using off-the-shelf commercial dataming software was domestic political grand-standing. Specifically it was Congressional Democrats (Republican Congressmen are less fearful of Big Brother because they sort of hope to BE Big Brother) showing the Democratic base that Congressional Democrats were protecting them from the mean, nasty, awful and rotten Bush administration, so they should gratefully support deserving Democratic Congressman with generous campaign contributions.

This just hasn't gotten the publicity the same grandstanding with FISA did.

But, when the next big foreign terrorist attack in the U.S. happens, I expect Republicans to roll this out as a weapon against the Democrats. And the laws against datamining by domestic counter-intelligence/anti-terrorist agencies will be repealed.

Getting back to the discussion at issue, consider how much local law enforcement is already doing with this technology.

And, Professor Kerr, consider what fundraisers, commercial advertisers, companies like Google, and political parties/campaigns are doing with this. You are quite correct that the Genie is out of the bottle, but you might not recognize just how big that Genie is.

We're not in the National Surveilliance State.

We're in the National Surveilliance Society.
2.13.2009 12:01am
whit:
you make the excellent point, that the primary problem (at least imo) is not "big brother". it's "little brother".

private industry has WAY WAY more intel on you than the govt. does and far less restrictions on how to use it.

i prefer my privacy. for example, i have a shoppers discount card at my grocery card. but it is under a generic name, and as long as i pay cash, it does not come back to me.
2.13.2009 12:11am
Fub:
whit wrote at 2.12.2009 11:16pm:
my understanding is it was not very common for the "average joe".

that's what the internet changed.
I think it is worth noting that while the "average joe" didn't publish or communicate very much anonymously or otherwise until recently, there was considerable anonymous, or "plausibly deniable" publication in the past.

Just to mention some that I know off the top of my head --

John Dryden, Alexander Pope and Jonathan Swift all published some politically sensitive works anonymously or pseudonymously in the 18th century, and some to great effect (See Swift's Drapier's Letters). Swift posed as an "average joe" in these.

More widely known, the Federalist Papers were published pseudonymously. The anonymity was not hardened, but there was enough to suit the purpose.

Somewhat like ISPs today, the printers were the first target of legal attacks when the publication offended the government.

The intarweb has given "average joe" a means to publish cheaply and widely, whether anonymous or not. Hard anonymity is not entirely trivial to achieve. Most "average joe" publishers would not be difficult to identify if the government chose to use its legal and technological resources to do so.
2.13.2009 12:27am
Thomas_Holsinger:
whit,

Also note that, when everyone but federal counterintelligence/anti-terrorist agencies are allowed to lawfully use datamining domestically, the feds will eventually use it unlawfully anyway.

IMO this can't be stopped. We might be able to regulate it somewhat, and perhaps we should, but forbidding the feds from using datamining domestically strikes me as somewhat like forbidding them from using computers.

Except for the FBI. They don't need any help not using computers.
2.13.2009 12:37am
Elliot123 (mail):
Perhaps the motive has always been there. The technology just creates the means and opportunity.
2.13.2009 12:42am
pintler:

for example, prior to the internet, there was little to no anonymous discoursing,


Unless you are very, very. careful, nothing you do on the internet is anonymous to someone with a National Security Letter, or whatever the term is. And as others have posted, probably not anonymous to Google either.

If you have ever, even once, used your grocery card and paid in anything but cash, it's not anonymous any more, and neither are any of the prior purchases. (disclaimer: I don't know how the stores run their program, but that is how I would do it, because a system that does that is easier to write than one that doesn't)
2.13.2009 1:42am
MarkField (mail):

my understanding is it was not very common for the "average joe".

that's what the internet changed.

think about it. 50 yrs ago, how many anonymous conversations/discourses did the average joe engage in?

nowadays, on the internet it's very common.


Agreed. And what the new technology does is shut off that discourse by the average person. Only those willing to engage in extraordinary efforts -- like you with the grocery card -- can remain anonymous. I see it as a method of social control.
2.13.2009 10:38am
methodact:
Total Lobbying reform and strict term limits and we'll reverse this. The spying is not just about preventing terrorism - it is for financial gain and political control.
2.13.2009 1:17pm
LoopFiasco:
"It reminds us that surveillance and datamining are always goal-dependent: when assessing a particular program, the focus must be on what works. If a surveillance tool or program doesn't work, it shouldn't be used."

And one that does should be used?

How bout focus on things that aren't illegal? Mass domestic surveillance &data-mining by the NSA surely doesn't seem legal. Yet it has been documented extensively.

Which makes the final sentence of the piece - the part about rules being made by lawmakers and not the surveillence state- seem a bit generous to the govt. Every single time the govt is given a power of this sort it has been abused. Why expect a different result when the technology advances you speak of make the snooping: a)faster b)easier c)more detailed d) more reliable and e)easier to share among gov't agencies??

The dept of homeland security (since when did 'homeland' become fashionable anyway?) is just the tip of the iceberg for what we can expect going forward.

On the bright side, as cities like my own install another 2,500 cameras (to add to the 1,500 already here)and this technology spreads out from the large cities- soon we will all be on govt t.v. all the time. Who hoo. I feel so British.

Balkin +1
2.13.2009 1:17pm
whit:

Also note that, when everyone but federal counterintelligence/anti-terrorist agencies are allowed to lawfully use datamining domestically, the feds will eventually use it unlawfully anyway.

IMO this can't be stopped. We might be able to regulate it somewhat, and perhaps we should, but forbidding the feds from using datamining domestically strikes me as somewhat like forbidding them from using computers.

Except for the FBI. They don't need any help not using computers.



for example, police are generally prohibited (the rules are complex) in compiling "non criminal intelligence", although many agencies do it - such as documenting "verbal" domestic violence calls in an incident report (we don't, fwiw).

and the average officer does not have access to (for example) intelius or other accounts (w/o paying out of his own pocket) to get intel data that ANY average citizen gets.

the information was available in the past, it was just difficult and time consuming to collect. now, it is so easy and available.

i frequently make use of all sorts of internet resources.

for example, often when dispatched to a location where tactical info is desired, i will check google earth etc. to get a view of the property layout, check the county assessor's website for ownership information, etc.

i also have access in my car to mugbook pictures from past arrests, by accessing various jail databases. i can check case reports related to that person and/or address on my computer from my agency, and other agencies that participate in a multiple agency database. i can access other records like marriage information, civil court actions, etc. etc. all from my keypad. note that the VAST majority of databases i use are PUBLIC and not "police only".

all this information was public in the past, but it was not easily and readily available, nor was it even possible to do boolean searches and stuff on databases that weren't computerized.

i can search for example, all case report narratives that use the word "IED" and include the moniker "spanky". that was pretty much impossible to do "back in the day", apart from hand searching.

my sgt. stopped a guy a while back for suspicion of soliciting prostitution. (terry stop). the guy, a lawyer fwiw, claimed he was not soliciting, he was just hanging out. he then claimed he had NEVER engaged in such activity.

a quick search of the database revealed a police report from an agency over a hundred miles away from 3 yrs back where he HAD been caught soliciting sex. the sgt. confronted the guy with that info, and the lawyer was shocked that the cop knew about it, etc.

stuff like that was simply not possible 20 yrs ago, even though all that information was available (in the broadest sense), it was not easily accessible, nor quickly accessible.
2.13.2009 1:24pm
whit:

Agreed. And what the new technology does is shut off that discourse by the average person. Only those willing to engage in extraordinary efforts -- like you with the grocery card -- can remain anonymous. I see it as a method of social control.



right. the point is many people now assume there is some sort of "right" that whatever they post on the internet cannot be traced back to them. the new technology has created the idea that if a person posts under a pseudonym, that his real identity is some sort of state secret and that's simply not the case.

there was a case at the UW not too long ago where some (idiot naive students, but that's redundant) committed a crime and then posted evidence of that crime and their involvement on one of those websites (don't recall if it was facebook or myspace or whatnot).

police investigators of COURSE search facebook, myspace, etc. (or at least they should if they have any brains) for leads and busted them.

the students claimed that their "privacy" was violated.

here's a hint: if you post evidence you just committed a crime on the frigging internet, your conception of "Privacy" needs work.
2.13.2009 1:29pm
methodact:
Perfunctorily invoking state secrets is the government's handy get out of jail free card.
2.13.2009 1:33pm
methodact:
The Surveillance State is a misnomer anyway. It involves the consolidation of corporate interests with those of government (corporations carry out the majority of the spying for the government) and "tears down the wall" between Intelligence, Operations and law inforcement.

Alex Jones reports that the government is spending some $5 billion alone, for agents provacatuering on blogs. Or as the notorious former FBI Director J. Edgar Hoover once put its mission: to "expose, disrupt, misdirect, discredit and otherwise neutralize" specific groups and individuals."
2.13.2009 1:49pm
methodact:
Much of the legislation (such as the FISA bills) ostensibly set up for spying against terrorists contained "and other puroposes". We know that meant against child pornography and there is evidence to believe it also focused on such innocuous matters as file sharing.

RIAA and MPAA previously bought our lawmakers and set up a bill for a "copyright czar".

One of the main architects of the domestic spying in the FISA bills, Diane Feinstein, (who managed to use her clout to avoid getting prosecuted for war profiteering over her votes for her husband's war interests) was at it again, here.

The bought-and-paid-for pols have also managed to stack DoJ with RIAA corporate crony shills according to this site here.
2.13.2009 2:27pm
methodact:
Update on Sen. Diane Feinstein's dirty dealings.
2.14.2009 4:08pm
methodact:
*Dianne
2.14.2009 4:10pm

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